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In a recent British Columbia Court of Appeal decision, Roe v. British Columbia Ferry Services Ltd, the Court showed that the contextual approach to just cause mandated by the Supreme Court of Canada in McKinley can be used as a sword by employers, as well as a shield by employees.

Gregory Roe brought an action against his former employer, British Columbia Ferry Services for wrongful dismissal. The employer defended the action alleging cause.

After an internal investigation, the employer concluded that Mr. Roe, a senior manager, had on more than one occasion knowingly given a total of about $70 worth of complimentary food and beverage vouchers to his daughter’s volleyball team without prior authorization, contrary to the employer’s policy. Mr. Roe denied that he knowingly contravened what he said was an ambiguous policy.

The trial judge made no findings of fact with respect to the nature of Mr. Roe’s alleged misconduct in the context of his position as a senior manager, or whether Mr. Roe acted dishonestly or simply inadvertently. Instead, he assumed for the purpose of his analysis that the employer’s version was true. Based on that scenario, he found that Mr. Roe’s actions were “bordering on trifling” and “relatively minor” and therefore did not amount to just cause for dismissal.

The Court of Appeal overturned the trial judge’s decision, remitting the matter for a new trial. In doing so, it looked to the two-part test for determining whether an employer is justified in dismissing an employee on the grounds of dishonesty that was set out by the Supreme Court of Canada in McKinley v. BC Tel. The test is contextual, and requires a court to examine the circumstances of the case and make factual determinations of: (i) whether the evidence establishes the employee’s misconduct on a balance of probabilities; and (ii) if so, whether the nature and degree of the misconduct warrants the employee’s dismissal.

The Court of Appeal found the trial judge had not applied the contextual approach mandated by McKinley. The Court of Appeal also concluded that the trial judge erred by characterizing the misconduct as “trifling” without examining the total context. The trial judge should have considered the responsibilities and trust attached to Mr. Roe’s senior management position, his breach of policy surrounding the distribution of the vouchers, and the employer’s evidence that he had deliberately attempted to conceal his actions.

In most cases, McKinley is used as a shield by employees. An employer cannot simply rely upon the nature of the offence to prove just cause; the employer must also show that all of the surrounding circumstances and context justifies a dismissing an employee without notice. However, the Court of Appeal in this case showed that McKinley and the contextual approach can also sometimes be used as a sword by employers to justify dismissing an employee for even the most trifling offence. No matter how serious, or how trifling, the offence, context always matters.

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This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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